Retracted Article Two: Social Networking and Civil Disclovery

Neil, Benjamin A., and Neil, Brian A. (2012) "Social Networking and Civil Discovery", Journal of Business Cases & Applications, 6: 1-6. [This article has been retracted by the journal]

Link to original article: http://web.archive.org/web/20121001125718/http://aabri.com/manuscripts/121115.pdf 

Neil and Neil, page 1	Ben M. Rose and Cole Dowsley, “The Brave New World of Social Networking Discovery: What You Should Know” Cornelius & Collins LLP, Newsletter, Spring 2012.
Over the past few years, the use of social networking websites, like Facebook and MySpace, has exploded among the general population. However, the use of social networking information in litigation, such as personal injury suits and divorce cases, and the corresponding legal doctrines pertaining to discovery of that information, have unfortunately not kept pace with the technology or popular use of online social networking. Facebook is by far the most utilized website at this moment in time. As described by the makers of Facebook, it is a social utility that helps people communicate with their friends, family, and coworkers.	Over the past few years, the use of social networking websites, like Facebook and MySpace, has exploded amongst the general population. However, the use of social networking information in litigation, such as personal injury suits and divorce cases, and the corresponding legal doctrines pertaining to discovery of that information, have unfortunately not kept pace with the technology or popular use of online social networking. Facebook is by far the most utilized website out there at this moment in time. As described by the makers of Facebook, it is a social utility that helps people communicate with their friends, family, and coworkers.
Neil and Neil, page 2	Ben M. Rose and Cole Dowsley, “The Brave New World of Social Networking Discovery: What You Should Know” Cornelius & Collins LLP, Newsletter, Spring 2012.
No expectation of privacy exists in the social networking context, perhaps even on the Internet as a whole.	However, no expectation of privacy exists in the social networking context, or perhaps even on the Internet as a whole.
Neil and Neil, page 2	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
Courts faced with ruling on discovery requests involving social media sites are forging new law. Courts can and do issue discovery orders compelling a party of a lawsuit to grant an opposing party access to his or her Facebook page or to permit in camera review of social media sites set to private settings.	Courts faced with ruling on discovery requests involving social media sites are forging new law. Courts can and do issue discovery orders compelling a party of a lawsuit to grant an opposing party access to his or her Facebook page or to permit in camera review or to permit in camera review of social media sites set to private settings.
Neil, page 2	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
Rules of Civil Procedure in most states provide for liberal discovery, e.g., Generally, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.	Rules of Civil Procedure in most states provide for liberal discovery, e.g., "Generally, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried." Pa.R.C.P. 4003.1; FRCP 34 (The Advisory Committee Notes instruct that the rule be read broadly and was drafted with the intent to apply to an ever evolving technological field); NYCPLR 3101 construed liberally.
Neil and Neil, page 2-3	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
In McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270, the plaintiff claimed substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life, after he was rear-ended during a cool down lap following a July 7, 2007, stock car race. The court granted defendants' Motion to Compel Discovery and ordered the plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants after defendants reviewed the public portion of plaintiff's Facebook account and discovered comments about his fishing trip and attendance at the Daytona 500 race in Florida, reasoning without more, the complete access afforded to the Facebook and MySpace operators defeats McMillen’s proposition that his communications are confidential. The law does not even protect otherwise privileged communications made in the presence of third parties.	In McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270, the plaintiff claimed substantial injuries, including possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life, after he was rear-ended during a cool down lap following a July 7, 2007, stock car race. The court granted defendants' Motion to Compel Discovery and ordered the plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants after defendants reviewed the public portion of plaintiff's Facebook account and discovered comments about his fishing trip and attendance at the Daytona 500 race in Florida, reasoning “Without more, the complete access afforded to the Facebook and MySpace operators defeats McMillen's proposition that his communications are confidential. The law does not even protect otherwise privileged communications made in the presence of third parties. See e.g. In re Condemnation by City of Philadelphia, 981 A.2d 391, 397 (Pa. Commw. Ct. 2009) ("Confidentiality is key to the [attorney-client] privilege, and the presence of a third-party during attorney-client communications will generally negate the privilege").
Neil and Neil, page 3	McMillen vs. Hummingbird Speedway, page 5
When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, [text ends in mid-sentence]	When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, …
Neil and Neil, page 3	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
In Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Northumberland Co., May 19, 2011), the plaintiff had claimed serious physical injuries from an on-the-job accident. Photos that he posted to social media sites cast doubt on the severity of his claimed injuries and whether they predated his work-related accident. The publicly available photos induced the defendant to believe that further relevant evidence might exist on the password-protected parts of the site accessible only by the plaintiff's "friends." The plaintiff claimed that he had a privacy interest in the password-protected materials. In ruling against plaintiff on this issue, the court noted that "All the authorities recognize that Facebook and MySpace do not guarantee complete privacy. Facebook's privacy policy explains that users post any content at the site at their own risk and informs users that this information may become publicly available.”	In Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Northumberland Co., May 19, 2011), the plaintiff had claimed serious physical injuries from an on-the-job accident. Photos that he posted to social media sites cast doubt on the severity of his claimed injuries and whether they predated his work-related accident.  The publicly available photos induced the defendant to believe that further relevant evidence might exist on the password-protected parts of the site accessible only by the plaintiff's "friends." The plaintiff claimed that he had a privacy interest in the password-protected materials. In ruling against plaintiff on this issue, the court noted that "All the authorities recognize that Facebook and MySpace do not guarantee complete privacy.  Facebook's privacy policy explains that users post any content at the site at their own risk and informs users that this information may become publicly available."
Neil and Neil, page 3	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
In Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538, 2010 NY Slip Op 20388 (2010), Defendant filed a motion for access to plaintiff's current and historical social networking pages and accounts, claiming that the plaintiff had placed certain information on the sites that it believed were relevant to the extent and nature of her injuries, especially her claims for loss of enjoyment of life. The court found, inter alia, that in light of the fact that the public portions of the plaintiff's social networking sites contained material that was contrary to her claims and deposition testimony, there was a reasonable likelihood that the private portions of her sites might contain further evidence such as information with regard to her activities and enjoyment of life, all of which were material and relevant to the defense of her personal injury action. The plaintiff's right to privacy was outweighed by the defendant's need for the information. As neither of the social networking sites guaranteed complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. The defendant's attempts to obtain the information via other means were thwarted by the plaintiff's counsel. Consequently, the defendant was entitled to the information.	In Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650, 2010 N.Y. Misc. LEXIS 4538, 2010 NY Slip Op 20388 (2010), Defendant filed a CPLR 3101 motion for access to plaintiff's current and historical social networking pages and accounts, claiming that the plaintiff had placed certain information on the sites that it believed were relevant to the extent and nature of her injuries, especially her claims for loss of enjoyment of life. The court found, inter alia, that in light of the fact that the public portions of the plaintiff's social networking sites contained material that was contrary to her claims and deposition testimony, there was a reasonable likelihood that the private portions of her sites might contain further evidence such as information with regard to her activities and enjoyment of life, all of which were material and relevant to the defense of her personal injury action. The plaintiff's right to privacy was outweighed by the defendant's need for the information. As neither of the social networking sites guaranteed complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. The defendant's attempts to obtain the information via other means were thwarted by the plaintiff's counsel. Consequently, pursuant to CPLR 3101, the defendant was entitled to the information.
Neil and Neil, page 4	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
1. Where a litigant voluntarily posts pictures and information on social media sites to share with other users of the sites, he or she cannot claim to possess any reasonable expectation of privacy to prevent a defendant from access to such information.	Where a litigant voluntarily posts pictures and information on social media sites to share with other users of the sites, he or she cannot claim to possess any reasonable expectation of privacy to prevent a defendant from access to such information.
Neil and Neil, page 4	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
2. Where a litigant puts physical condition at issue, he or she must anticipate reasonable discovery to rebut the claims.	Where a litigant puts physical condition at issue, he or she must anticipate reasonable discovery to rebut the claims.
Neil and Neil, page 4	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
3. Courts will not permit a fishing expedition: discovery in the social media context requires a threshold showing that publicly accessible portions of a social networking site contain information that would suggest that further relevant postings are likely to be found by access to the non-public portions. See generally McCann v. Harleysville Insurance Company, 78 A.D.3d 1524 (N.Y.S.2d 2010)	Courts will not permit a fishing expedition: discovery in the social media context requires a threshold showing that publicly accessible portions of a social networking site contain information that would suggest that further relevant postings are likely to be found by access to the non-public portions. See generally McCann v. Harleysville Insurance Company, 78 A.D.3d 1524 (N.Y.S.2d 2010)
Neil and Neil, page 5	Lisa McManus, “Is There A Social Media Privilege?” posted 11/09/2011.
4. A court may decline to review materials in camera: 1) strain on court resources, 2) unfair to require court to guess at what may be germane to case. But see Barnes v. CUS Nashville, LLC, 3:09-cv-00764 (M.D. Tenn) (June 3, 2010) (court offers to friend witnesses)	A court may decline to review materials in camera: 1) strain on court resources, 2) unfair to require court to guess at what may be germane to case. But see Barnes v. CUS Nashville, LLC, 3:09-cv-00764 (M.D. Tenn) (June 3, 2010) (court offers to friend witnesses)